Gay and transgender workers deserve full federal employment security

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WASHINGTON, DC – JUNE 26: Gay rights supporter Vin Testa waves a rainbow flag outside the U.S. Supreme Court building on June 26, 2013 in Washington, DC. The high court is expected to rule on the DOMA and Prop 8 gay marriage cases. (Photo by Win McNamee/Getty Images)

Congress should have done its job years ago by giving gay and transgender workers federal protections they have always deserved. California did the right thing in 2003, and 21 other states also have laws providing LGBT workers protections against discrimination.

But the legal status of federal protections remains less certain. That’s why the U.S. Supreme Court announced Monday that it will decide whether the Civil Rights Act prevents employers from firing workers because of their sexual orientation and gender identity.

The judicial community has wrestled for more than two decades with whether the 1964 law, which prohibits sex discrimination, should be interpreted to cover gender identity and sexual orientation.

Lower courts have sharply disagreed on the issue, putting pressure on the high court for resolution.

It will consider three cases in which employers fired LGBT workers. Two of the cases will be heard together.

The first involves Donald Zarda, a skydiving instructor dismissed in 2010 by his employer, Altitude Express, after a woman who was strapped to him for a dive accused him of inappropriately touching her. He had reportedly on occasion told women not to worry about being strapped together with him because he was gay. Zarda died in a skydiving accident in 2014, but his family was allowed to continue his lawsuit, saying his firing was an act of sexual discrimination. The 2nd Circuit of the U.S. Court of Appeals ruled in his favor.

But the 11th Circuit of the U.S. Court of Appeals reached a different conclusion in the case of a Georgia juvenile court system social worker. Bostock said he was fired after his employer learned he was gay, but the appeals court said that his firing was legal under the law.

The final case raises the question of whether someone can be fired for being transgender. Aimee Stephens of Detroit said she was dismissed by a funeral home in 2013. Her employer admitted that Stephens was fired because she was “no longer going to present herself as a man.” The 6th Circuit of the U.S. Court of Appeals ruled in her favor, saying the firing was a form of sex discrimination.

The Supreme Court’s decision will be a defining moment for the court’s new conservative majority. The justices haven’t tackled a major LGBT rights issue since Justice Anthony Kennedy, who retired last year, cast the deciding vote in the 2015 ruling legalizing same-sex marriage.

The latest cases would not be disputed if Congress had resolved the uncertainty about the reach of the Civil Rights Act.

Sen. Jeff Merkley of Oregon and Rep. David Cicilline of Rhode Island introduced a bill in Congress in 2015 that would have specifically banned discrimination based on sexual orientation and gender identity. But they couldn’t get their bill out of committee. Merkley and Cicilline tried again in 2017, but suffered the same fate.

Perhaps the third time will be a charm.

More than 190 companies employing 9.8 million workers — including the Bay Area’s Adobe, Apple, Advanced Micro Devices, Airbnb, Chevron, Cisco Systems, CSAA Insurance Group, eBay, Facebook, Google, Hewlett-Packard, Intel, Kaiser Permanente, Levi Strauss, Netflix and Oracle — are supporting another effort on Capitol Hill. The bill is expected to win favor in the Democratic-controlled House but faces an uphill challenge in the Senate, where Republicans hold a majority.

Congress should provide full equality to a community that has endured discrimination for far too long.

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